In the recently published case of Iwanik v. Hayes, 2011 BCSC 812, Madam Justice Gray awarded a total of $178,576.31 in damages (of which $50,000 was for pain suffering and loss of enjoyment of life) to a plaintiff who sustained multiple injuries in a motor vehicle accident in Nelson, BC in June 2008.

Fibromyalgia in ICBC Injury Case

Ms. Iwanik was driving a Pontiac Sunfire that was struck on its passenger side by a Chevrolet Blazer. Ms. Iwanik’s car was written off. The Blazer sustained $2000 worth of damages. Liability for the accident was admitted by the Defendant.

Ms. Iwanik’s lawyer argued that appropriate damages would amount to $290,000, including $150,000 for a loss of earning capacity. ICBC’s lawyer argued that damages should be in the $35,000 to $85,000 range – including an amount from $0 to $30,000 for the loss of earning capacity claim.

After a six day trial, the Court found that Ms. Iwanik sustained the following injuries in the car accident: (1) soft tissue injuries to her neck, thorax and lumbar spine, causing a prolonged and sustained exacerbation of her fibromyalgia, and causing intermittent headaches; (2) an injury to her left knee, which caused patellofemoral pain syndrome; (3) a minor compression fracture of her T12 vertebra, and (4) a minor head injury with a probable minor concussion – both of those injuries resolved so quickly that the Court found that they did not affect the assessment of damages.

The Court found that if the accident had not occurred her fibromyalgia would have flared up periodically, but not enough to have restricted Ms. Iwanik from her work or her other activities. The Court also found that Ms. Iwanik was no longer able to work at a physically demanding job or engage in long walks. The Court found that she could no longer carry heavy items such as laundry and groceries, or garden for more than 20 minutes at a time, and was no longer able to contribute to her family and community to the extent she previously did.

Loss of Earning Capacity in ICBC Injury Case

At the time of the accident, Ms. Iwanik was 61 years old and working part-time as a sales associate in a 7-Eleven convenience store. In the past, she had held a managerial position with 7-Eleven. While Ms. Iwanik found work at a Husky gas station after the accident that accommodated her limited physical abilities, the Court found that job was not as well-paid as her former employment had been and did not offer her opportunities for advancement.

In the result, Madam Justice Gray awarded the Plaintiff $100,000 for her loss of earning capacity. On that issue, the judge said as follows:

[162] On balance, it is most likely that Ms. Iwanik would have and will continue to work until it becomes too taxing physically. She suffers from COPD, and had pre-existing fibromyalgia. The effect of the accident is that she cannot sit or stand for lengthy periods, and is restricted in the work she can do. However, the accident did not affect the age to which she is likely to be able to work.

[163] It is likely that Ms. Iwanik will stop working full-time when she reaches about 68 years of age, and that she will continue to work part-time until she is about 70 years old.

[164] If Ms. Iwanik had obtained a position of manager of a 7-Eleven Store, she would likely have earned about $26,000 per year more than she is presently earning at Husky.

[165] The present value multiplier for future income loss from the date of trial to Ms. Iwanik’s 70th birthday is 5.889. Applying that multiplier to $26,000, the present value of the increased amount that Ms. Iwanik would have earned is about $153,000.

[166] It is appropriate to adjust that figure by 65% to take into account the various contingencies. Those include the negative contingencies that, even if the accident had not occurred, Ms. Iwanik would not have obtained a manager position, or would have earned less than estimated in such a position, or would have stopped working in that position for some reason and taken a more poorly-paid position, or would have stopped working full-time before she reached the age of 70. The positive contingencies include the possibility that, if the accident had not occurred, she would have earned more than estimated as a 7-Eleven manager or in some other position, and would have worked past the age of 70. Using the 65% factor results in a figure of about $100,000.

[167] Damages must be assessed, not calculated, and must be fair to both parties.